Sealing an Arrest Record in California – Penal Code 851.91 PC
Every year in California, hundreds of thousands of people are cited or arrested on different misdemeanor or felony charges.
However, out of all these massive arrests, a significant number of these cases are never actually filed as criminal charges. Further, many criminal cases are filed but are dropped later by the prosecutor for different reasons.
When this happens, many people do not understand that you have to take legal steps to keep the arrest details off your public record that anyone can view. If you have an arrest on your public record, it could impact your ability to find a job, where you can live, or join the military.
Under the law, any person arrested in California but not convicted of the crime can get their arrest records sealed, meaning the arrest details won't appear on most criminal background checks.
The old California law for getting an arrest record sealed required a petition to prove “factual innocence” under Penal Code 851.8 PC, which had a high standard and was often difficult to obtain.
If you were arrested for a crime but never convicted of it, you could be eligible to have the arrest record sealed under California Penal Code 851.91 PC. In this article by our Los Angeles criminal defense lawyers, we will examine this law in greater detail below.
What is the Care Act?
An updated 2018 law, Senate Bill 393, The CARE Act, makes it easier to get your record sealed in California. Governor Jerry Brown signed this bill into law in October 2017, and it took effect on January 1, 2018.
SB 393 changed the statutory language in Penal Code Section 851 PC subsections by amending the law by adding Penal Code 851.91 and 851.92. The changes within the law make it easier to seal your arrest record in a scenario where you were arrested for a crime but not convicted.
If you get your arrest record sealed, the arrest will be deemed not to have occurred, meaning you can answer “no” to the critical application question of “have you ever been arrested” often asked by employers and landlords.
After your arrest record has been sealed under PC 851.87, your arrest will not appear publicly on most background checks.
However, readers should note that the protections of sealing an arrest record do not prevent any disclosure of arrests to a California government agency or the United States Department of Justice.
Also, your arrest record will not be erased entirely and could still be used against you if you're prosecuted for a new crime. If applying for specific jobs, such as a police officer or securing a state license, you will remain obligated to disclose your arrest.
Further, getting your arrest record sealed doesn't relieve you from your legal responsibility for registering as a sex offender under California Penal Code 290 PC or any prohibition against owning or possessing a firearm.
Who Is Eligible for Getting Their Arrest Record Sealed?
Pursuant to California Penal Code 851 PC, you are eligible to have your arrest record sealed if:
- you were arrested, but criminal charges were never filed;
- criminal charges were filed after your arrest but later dismissed;
- you were acquitted or found not guilty at a jury trial;
- you were convicted, but it was later vacated or overturned on appeal;
- charges were dismissed upon completion of a pretrial diversion program, such as PC 1000 deferred entry of judgment or Proposition 36 drug treatment.
If you are eligible, there is no guarantee that your arrest record will be sealed. The judge has the authority and discretion to grant or deny your petition.
They will typically examine your prior criminal history, evidence of the arrest, moral character, and any hardships caused by your arrest.
Who Is Ineligible to Get Their Arrest Record Sealed?
Numerous exceptions will make you ineligible to get your arrest record sealed in California, including:
- you might be charged again later by the prosecutor because the statute of limitations has not expired;
- you were charged with a severe felony violent felony case, like PC 187 murder, which has no statute of limitations unless you're acquitted;
- your criminal record demonstrates a pattern of arrest for domestic violence-related charges, such as Penal Code 243(e)(1) PC domestic battery, Penal Code 273.5 PC corporal injury, child abuse, elder abuse;
- you intentionally evaded police efforts to prosecute the arrest;
- you evaded arrest efforts by engaging in identity theft.
What is the pattern of domestic violence incidents? It's described as at least two convictions or five arrests within three years for elder abuse or child abuse from at least one of the other types of crime.
Even if a pattern is established, the judge still has the discretion to grant the request to seal it if it serves the interests of justice. If you were convicted of a crime in California, then sealing is not an option, but you could still pursue a criminal record expungement.
What is the Court Process?
First, you need to seek assistance from a criminal defense lawyer who can guide you through the process of Penal Code 851.91 PC sealing your arrest record.
Note that one petition will apply to only one arrest. This means you have to file separate petitions for each arrest you want to be sealed.
You have to file a petition in the court or city where the arrest occurred. It must be served to the arresting law enforcement agency and the prosecution. The PC 851.91 petition must include:
- name of the law enforcement agency that made the arrest;
- date and location of the arrest;
- case number, if available;
- alleged crime;
- a statement that you are entitled to have the arrest record sealed as a matter of right or for the interest of justice and declarations of support.
After the prosecuting agency receives the petition, they have the option to request a hearing to challenge the petition, which must occur within 60 days after they were served.
The judge will review your arrest record at the actual hearing and decide whether the “interests of justice” will be served if they grant the petition.
Your lawyer can present evidence in support of granting the petition. Likewise, the prosecutor can present evidence to dispute the petition on the other side.
Getting your arrest record sealed usually takes about three months once you have filed the petition. Under Penal Code 851.91 PC, there is no set deadline to file a petition. We will look at the statute of limitations to determine when your specific crime will expire.
What are the Benefits of Getting an Arrest Record Sealed?
If you have a criminal record in California, it is a public record, meaning anyone can access this information, such as possible employers.
Even though employers are technically prohibited under “California's ban the box law” from considering an arrest without a conviction, they will come up with another reason not to hire you. In other words, employers regularly reject applicants that have arrests on their record but won't say it.
Getting your arrest record sealed will help you join the military, get accepted into a college, or obtain a professional license. After your arrest record is sealed, most prying eyes will no longer be able to see:
- any record of the arrest,
- booking pictures and fingerprints,
- police report, or
- court records.
Before this law was updated, it was tough for someone arrested to get their record sealed, meaning an innocent person could face discrimination.
Our law firm can help you prepare and file a motion in court. Note that sealing an adult arrest record is different from sealing a juvenile record, as defined under Welfare and Institutions Code 781. If you need more information about sealing your arrest record, contact our office for an initial consultation at (877) 781-1570 or fill out the contact form.